Social Security Administration Attempts to Correct Gay Marriage "Penalty" for Some SSI Recipients

The Social Security Administration (SSA) has finally decided that it can’t have it both ways when it comes to gay couples it once claimed weren’t married. The agency recently issued an Emergency Message that attempts to correct its previous policy of assessing overpayment penalties against Supplemental Security Income (SSI) recipients whose same-sex unions weren’t recognized by the federal government but later were.

Here’s the background: In order to receive SSI benefits, an applicant must have a very limited income. In a process known as “deeming,” a portion of the applicant’s non-disabled spouse’s income counts towards the applicant’s SSI income limit, often preventing the person with disabilities from qualifying for SSI.

Before the U.S. Supreme Court’s recent ruling making gay marriage legal across the country, the SSA refused to recognize many gay marriages and processed SSI applications for married gay applicants as if they were actually single. This meant that the spousal deeming rules did not apply to those applicants, making it easier for them to qualify for SSI. However, once the federal government began recognizing gay marriages, the SSA reversed its previous stance and claimed that all married, gay SSI recipients should actually have been subject to spousal deeming from the date of their marriages. The SSA sent overpayment notices to hundreds of SSI beneficiaries who fit this profile.

The beneficiaries filed a lawsuit against the government, claiming that it was unfair to penalize them for being married while receiving SSI benefits since the government had illegally refused to recognize their marriages in the first place. Several influential U.S. senators and representatives objected to the government’s stance and called for the SSA to change its policy.

In response to those concerns, the SSA recently issued EM-16013 REV, an Emergency Memo instructing all field personnel to file immediate requests for waivers of penalties for anyone affected by the SSA’s discriminatory policy. Furthermore, these waiver requests must be presumptively honored, meaning that in most cases, the overpayment assessments will be removed. This new policy does not mean that spousal deeming rules won’t apply to same-sex couples moving forward, merely that couples won’t be penalized for being married while the SSA refused to recognize their unions.